Do pre-nuptial agreements work?
His Honour Judge Booth recently considered a case* concerning a prenuptial agreement, and reinforced the basic principles that, to have a reasonable prospect of being upheld in a divorce court the following basic conditions need to be met: –,
The agreement needs to be carefully drafted.
Both parties, particularly the person who is less well off, has to have proper legal advice explaining the agreement, and also explaining what their position would be without the agreement, so that they understand what they might be giving up.
Both parties need to have disclosed their financial circumstances.
There must be no undue pressure to sign the agreement. As part of this the agreement must not be signed immediately before the wedding – 28 days is the minimum recommended period, although that is not strictly a rule of law.
Importantly, the agreement must not result in financial disadvantage for children, and it must not leave either party (usually the person who is less well off) in financial need.
The particular case is anonymised and some details are removed to prevent the parties from being identified. We know that they married relatively late in life, and both of them had been divorced before. The husband was a little older than the wife. They both originated from an unspecified country outside the UK, which is where their wedding took place, but they intended to live in the UK. The wife was a successful businesswoman, and also had a number of rental properties, her income net of tax was about £100,000 per annum and her net worth was about £3 million. The husband had some assets in the country of origin, but they are quite obscure and were somehow tied up in the terms of his divorce settlement from his previous wife.
Five days before their wedding they went to the office of a local attorney. Accounts differ as to how they got there, and exactly what happened, but they signed a fairly simple prenuptial agreement essentially saying that neither of them would make any financial claims against the other in the event of divorce. The attorney, of course, knew nothing of UK law so neither of them was advised. The document included a short but incomplete note of the parties’ financial circumstances.
They lived in the UK as planned. The husband was employed in the wife’s business, but mostly spent his time looking after her two children. The marriage broke down after about six years and by the time the case came to court the husband was bankrupt, having incurred quite large debts partly on his own living expenses, and partly on legal fees. The trial was evidently a bit of a white knuckle ride, and the judge formed a poor impression of both of them. But he did not hesitate to say that there was no value whatever in the prenuptial agreement, and he went on to award husband enough money to clear his debts, a fund to live on, and enough money to buy a comfortable flat, to live in as long as he needed it.
*S v H [2020] EWFC B16
John Pratley is an expert divorce lawyer, who has more than 25 years experience advising clients purely about divorce and related family law issues, such as the financial consequences of separating and divorcing. After establishing the first niche family law practice in Bristol, and going on to senior management roles in a national firm, John set up Apple Tree Family Law in 2018. Apple tree family Law solicitors specialise in advice about divorce and financial issues.
We are based in Bristol and Exeter, but we have clients all over the UK and further afield. We offer, simply, clear and accurate advice about divorce and family law issues, and the very best client service, for a clear and reasonable price.
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